The Rohingyas are a Bengali-speaking and mostly-Muslim minority belonging to the Rakhine state of Myanmar. Rohingyas were not recognised under the Myanmar Citizenship Laws of 1982 as citizens, and hence have largely remained stateless. Officials of the Myanmar Government often describe them as Bangladeshi immigrants despite their long historic connection to Myanmar, to the extent that a Rohingya member, Shwe Muang, has even served as a Member of Parliament from 2011-16. These same Rohingya people have faced huge military crackdowns in 1990-91, 2012, and 2015, and their persecution time and again has been described as “ethnic cleansing” by the United Nations. Though there is no particular data available on when the Rohingyas moved to India, most of them are estimated to have done so between 2012 and 2015, owing to the grave violence against their community which eventually made their survival in Myanmar impossible.
The issue was brought into more recent light when the Union Minister for Home Affairs Rajnath Singh announced on 11th August in Parliament that “a task force has been constituted to deport illegally staying foreign nationals.” Three days later, the National Human Rights Commission issued a notice to the Union Government, and now the issue is being heard by the Supreme court of India.
It is true that India is not a signatory to international conventions such as the United Nations Convention on the Status of Refugees (1951) which provides for the principle of “Non-Refoulement”, essentially prohibiting the expulsion of a refugee back to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. It protects the life and liberty of a human being irrespective of his nationality. But at the same time there are other covenants such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as UNCAT) which India ratified in 1997. Article 3 of the UNCAT provides that no state shall return or extradite a person where there is a substantial possibility of the person being subjected to torture on his return. The International Convention on Protection of All Persons Against Enforced Disappearances which India has also ratified in 2007, provides under Article 16 that no party shall expel or surrender a person to another state when there are grounds to believe that he or she will be in danger of enforced disappearance upon return. These conventions, although unenforceable as rule of law in the country, have to be given due regard considering their ratification by the Indian Government.
The Constitution of India under Article 51-C of the Directive Principles of State Policy also provides that the state is under obligation to foster respect for international laws and treaties. It is vital to note that under Article 246 of the Constitution, the Union is empowered to enact laws on subjects provided under Schedule VII of the Constitution. The entries 10, 13, and 14 of this Schedule are relevant segments where such laws can be clearly enacted and eventually enforced by the Union as and when such need arises. Further, Article 253 provides that the Union has power to enact laws for giving effect to any of the international treaties, agreements and conventions. But in the present case, there has been no such enactment related to the deportation of such refugees from India, and as such the whole process of deportation has no support in law.
The case being raked up before the Supreme Court raises serious issues as the petitioners before the court are registered refugees with the United Nations High Commission of Refugees (UNHCR) and clearly stand on a different footing than other immigrants living in India. The petitioners state that out of the total population of Rohingyas residing in India – which is anywhere around 40,000 – about 16,500 are registered with the UNHCR and ought to be treated differently from those the government claims to be illegal immigrants. It is relevant to note that though India is not obliged to follow the principle of Non-Refoulement as a rule of law, the principle has to be given due importance as every individual has certain essential fundamental rights prescribed under Part III of our Constitution and various other international conventions such as the Universal Declaration of Human Rights.
The Government may rely on Section 3 (2) (C) of the Foreigners Act of 1946, which empowers the Central Government to deport foreigners from the country if they come to adverse notice or if their presence in the country is considered to be against the national interests. But it is to be noted that imminent threat ought to be duly established before any action is taken. It is also relevant to note that Section 3 (2) empowers the government to regulate these refugees and impose conditions on them to maintain a check and ensure that they don’t involve themselves in anti-national activities.
In the case of National Human Rights Commission vs. State of Arunachal Pradesh [(1996) 1 SCC 742] the Supreme Court held that the Constitution of India confers certain rights on every human being and certain other rights on citizens. No person could be deprived of his life or personal liberty except according to the procedure established by law. The State is bound to protect the life and liberty of every human being, be he a citizen or otherwise. A direction was given by the Supreme Court to the State to ensure the safety of 65,000 Chakma refugees in light of the “Quit India” threat notices served upon them by the All Arunachal Pradesh Students Union.
Due regard ought to be given to principles of International law in light of the provisions enshrined under the Constitution. I am positive that, in consideration of the above, the Supreme Court will appreciate the fact that the Government’s actions must necessarily have the backing of law, and that the essential fundamental rights provided under the Constitution are available to them as they are to other citizens. In case the government is able to establish an imminent threat from such Rohingya people to National Security, then it is important that the Supreme Court impresses upon the government the duty to explore the option of deporting them to some other country where they may remain safe.
The author, Ayush Negi, is an Advocate in the Supreme Court. His work focuses on social justice reform for the underprivileged.
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